Rex v Masemang

• Jurisdiction: South Africa
• Judge: Centlivres JA, Schreiner JA, and Van Den Heever JA
• Judgment Date: 16 March 1950
• Citation: 1950 (2) SA 488 (A)
• Hearing Date: 07 March 1950
• Court: Appellate Division

Van den Heever, J.A.:

Leave of this Court having been obtained, this is an appeal against a conviction before PITTMAN, A.J., and two assessors in the Witwatersrand Local Division on a charge of assault with intent to rape.

The shorthand notes taken at the trial were irretrievably lost by the stenographer so that we had to hear the appeal upon the best available evidence as to the proceedings in Court. Fortunately there was a large measure of agreement between counsel. The

Van den Heever JA

appellant had no objection to the appeal being argued on the notes of the learned Judge in the Court a quo, the appellant's petition for leave to appeal and the judgment pronounced in that Court, as well as on the record of the preparatory examination in so far as it is incorporated by reference in the notes I have mentioned. The Crown, again, was prepared to admit all the allegations of fact in the petition for leave to appeal with the exception of allegations as to certain distances contained therein and agreed that the records to which I have referred constitute adequate and satisfactory secondary evidence upon which we could dispose of this appeal.

To a large extent the facts are not in dispute. On the 1st of March, 1949, the complainant, a European married woman who was a hospital nurse at the time, returned by train from her work in Johannesburg, arriving at Boksburg East station, the nearest station to her home in Boksburg North, at 8.20 p.m. Not seeing her husband whom she expected to meet her, she proceeded home in a northerly direction. Going through the gate which gives egress from the station premises she saw a man walking towards her who after passing her remained standing at the gate. He wore dark trousers, a dark maroon pullover, a 'blue-white' shirt with rolled-up sleeves and a big, dark felt hat. When she hurried northwards she heard a person running on a footpath to the left of the road upon which she was walking who then headed her off. Approaching her from the left side of the road this person seized her by the neck, pressing on her throat, dragged her a few paces on to grass to the right-hand side of the road and made a determined effort to ravish her. She was able to resist until a native pushing a bicycle came along and, when she screamed, her assailant ran away in an easterly direction. Her assailant was dressed in the same manner as the man whom she had passed at the gate and, although she does not expressly say so, it is safe to assume that complainant meant to convey that he was the same individual.

The complainant gave a description of her assailant to the police that evening; apparently she could not state any striking characteristic of face or features, so that the dark maroon jersey figured prominently in her description. As a result Sgt. Smith received instructions to search for and bring in any native found in the vicinity wearing a red jersey. At 11 o'clock the same night near the station Smith entered a garage which was being used as native sleeping quarters and found the appellant and two other natives, Lawrence and Jacob, in bed. He ordered them to dress and when the appellant put on a dark red jersey, blue shirt and dark trousers he was arrested. Smith noticed fresh red mud on the left knee of appellant's trousers and a small patch of red mud on the right knee as well as similar mud on the toe of his left shoe.

At 3 p.m. on the next day an identification parade was held.

Van den Heever JA

Not knowing that he would have to conduct the parade, Sergeant Jooste, who knew only the bare outline of the incidents described, was sent to fetch the complainant from her home. Out of curiosity he discussed the impending parade with her and asked whether she would be able to identify the right native. According to her evidence she replied: 'If he is dressed in the same clothes, I am sure...